AN ACT to amend and reenact article 3, chapter 64 of the Code of
West Virginia, 1931, as amended, relating generally to the
promulgation of administrative rules by the Department of
Environmental Protection; legislative mandate or authorization
for the promulgation of certain legislative rules by various
executive or administrative agencies of the state; authorizing
certain of the agencies to promulgate certain legislative
rules in the form that the rules were filed in the State
Register; authorizing certain of the agencies to promulgate
certain legislative rules in the form that the rules were
filed in the State Register and as amended by the Legislature; authorizing certain of the agencies to promulgate certain
legislative rules with various modifications presented to and
recommended by the Legislative Rule-Making Review Committee;
authorizing certain of the agencies to promulgate certain
legislative rules with various modifications presented to and
recommended by the Legislative Rule-Making Review Committee
and as amended by the Legislature; authorizing certain of the
agencies to promulgate certain legislative rules as amended by
the Legislature; authorizing the Department of Environmental
Protection to promulgate a legislative rule relating to
hazardous waste management systems; authorizing the Department
of Environmental Protection to promulgate a legislative rule
relating to surface mining reclamation; authorizing the
Department of Environmental Protection to promulgate a
legislative rule relating to ambient air quality standards;
authorizing the Department of Environmental Protection to
promulgate a legislative rule relating to permits for
construction and major modification of major stationary
sources of air pollution for the prevention of significant
deterioration; authorizing the Department of Environmental
Protection to promulgate a legislative rule relating to
standards of performance for new stationary sources;
authorizing the Department of Environmental Protection to promulgate a legislative rule relating to control of air
pollution from combustion of solid waste; authorizing the
Department of Environmental Protection to promulgate a
legislative rule relating to permits for construction and
major modification of major stationary sources of air
pollution which cause or contribute to nonattainment;
authorizing the Department of Environmental Protection to
promulgate a legislative rule relating to the control of air
pollution from hazardous waste treatment, storage and disposal
facilities; authorizing the Department of Environmental
Protection to promulgate a legislative rule relating to
emission standards for hazardous air pollutants; authorizing
the Department of Environmental Protection to promulgate a
legislative rule relating to the National Pollutant Discharge
Elimination System (NPDES) Program; authorizing the Department
of Environmental Protection to promulgate a legislative rule
relating to requirements governing groundwater standards; and
authorizing the Department of Environmental Protection to
promulgate a legislative rule relating to monitoring well
design standards.

Be it enacted by the Legislature of West Virginia:

That article 3, chapter 64 of the Code of West Virginia, 1931,
as amended, be amended and reenacted to read as follows:

(a) The legislative rule filed in the state register on the
thirtieth day of July, two thousand ten, authorized under the
authority of section six, article eighteen, chapter twenty-two of
this code, modified by the Department of Environmental Protection
to meet the objections of the Legislative Rule-Making Review
Committee and refiled in the state register on the twenty-first day
of September, two thousand ten, relating to the Department of
Environmental Protection (hazardous waste management system, 33 CSR
20), is authorized.

(b) The legislative rule filed in the state register on the
thirtieth day of July, two thousand ten, authorized under the
authority of section four, article three, chapter twenty-two of
this code, modified by the Department of Environmental Protection
to meet the objections of the Legislative Rule-Making Review
Committee and refiled in the state register on the eighteenth day
of January, two thousand eleven, relating to the Department of
Environmental Protection (surface mining reclamation, 38 CSR 2), is
authorized with the following amendments:

On page fifty-four, subdivision 3.32.b., by striking out the
words "For the purposes of W.Va. Code §22-3-19(a)(1)(B), an

operator shall be considered in compliance with the applicable
environmental performance standards referenced therein unless it
has unabated cessation orders, notices of violations that are not
in the process of being abated to the Secretary's satisfaction,
delinquent civil penalties, or bond forfeitures.";

On pages one hundred fifty-four and one hundred fifty-five,
paragraph 12.2.a.1., by striking out all of paragraph 12.2.a.1.
and inserting in lieu thereof a new paragraph 12.2.a.1. to read as
follows:

"12.2.a.1. The permittee may file an application with the
Secretary for the release of all or part of a bond. Applications
may be filed only at times or during seasons established by the
Secretary which allow proper evaluation of the completed
reclamation operations.";

And,

On page one hundred seventy-seven, subdivision 14.11.h., by
striking out the words "e. and f." and inserting in lieu thereof
the words "e., f. and g.".

(c) The legislative rule filed in the state register on the
twenty-eighth day of July, two thousand ten, authorized under the
authority of section four, article five, chapter twenty-two of this
code, relating to the Department of Environmental Protection
(ambient air quality standards, 45 CSR 8), is authorized.

(d) The legislative rule filed in the state register on the
twenty-eighth day of July, two thousand ten, authorized under the
authority of section four, article five, chapter twenty-two of this
code, modified by the Department of Environmental Protection to
meet the objections of the Legislative Rule-Making Review Committee
and refiled in the state register on the eleventh day of January,
two thousand eleven, relating to the Department of Environmental
Protection (permits for construction and major modification of
major stationary sources of air pollution for the prevention of
significant deterioration, 45 CSR 14), is authorized with the
following amendment:

On page twenty, after paragraph 2.80.e.2., by adding the
following:

"2.80.f. Notwithstanding subdivisions 2.80.d. and 2.80.e.,
and subject to the public notice requirements set forth in
subdivision 2.80.g., the preconstruction permit requirements of
this rule shall not apply to a source's GHG emissions if any of the
following actions result in GHGs not being subject to regulation
under the otherwise applicable federal prevention of significant
deterioration requirements set forth in 40 CFR §51.166:

2.80.f.1. A US EPA final rule;

2.80.f.2. An act of the United States Congress;

2.80.f.3. A Presidential Executive Order;

2.80.f.4. A final order of the District of Columbia
Circuit Court of Appeals, if the specified time for appealing the
order has lapsed and no appeals, petitions seeking clarification or
rehearing, or other petitions regarding the order have been filed,
or, if any appeals or petitions are filed, the resolution of any
and all appeals and petitions regarding the final order are
complete and have upheld the relevant determination(s). Moreover,
a stay shall also create an exemption during the effective length
of the stay. These two specific exemptions shall become effective
only if US EPA does not object in writing by the end of the notice
period set forth in subdivision 2.80.g.; or

2.80.f.5. An order of the United States Supreme Court.

2.80.g. The exemption set forth in subdivision 2.80.f. shall
become effective after the Secretary provides a thirty day notice
of such exemption to US EPA and the public. Such notice shall be
published in the West Virginia Register and explain the
circumstances justifying the exemption."

(e) The legislative rule filed in the state register on the
twenty-eighth day of July, two thousand ten, authorized under the
authority of section four, article five, chapter twenty-two of this
code, relating to the Department of Environmental Protection
(standards of performance for new stationary sources, 45 CSR 16),
is authorized.

(f) The legislative rule filed in the state register on the
twenty-eighth day of July, two thousand ten, authorized under the
authority of section four, article five, chapter twenty-two of this
code, modified by the Department of Environmental Protection to
meet the objections of the Legislative Rule-Making Review Committee
and refiled in the state register on the eleventh day of January,
two thousand eleven, relating to the Department of Environmental
Protection (control of air pollution from combustion of solid
waste, 45 CSR 18), is authorized.

(g) The legislative rule filed in the state register on the
twenty-eighth day of July, two thousand ten, authorized under the
authority of section four, article five, chapter twenty-two of this
code, relating to the Department of Environmental Protection
(permits for construction and major modification of major
stationary sources of air pollution which cause or contribute to
nonattainment, 45 CSR 19), is authorized.

(h) The legislative rule filed in the state register on the
twenty-eighth day of July, two thousand ten, authorized under the
authority of section four, article five, chapter twenty-two of this
code, relating to the Department of Environmental Protection
(control of air pollution from hazardous waste treatment, storage
or disposal facilities, 45 CSR 25), is authorized.

(i) The legislative rule filed in the state register on the

twenty-eighth day of July, two thousand ten, authorized under the
authority of section four, article five, chapter twenty-two of this
code, relating to the Department of Environmental Protection
(emission standards for hazardous air pollutants, 45 CSR 34), is
authorized.

(j) The legislative rule filed in the state register on the
thirtieth day of July, two thousand ten, authorized under the
authority of section four, article eleven, chapter twenty-two of
this code, relating to the Department of Environmental Protection
(requirements governing water quality standards, 47 CSR 2), is
authorized with the following amendments:

On pages two and three, subsection 3.1, by striking out the
words "and certain water withdrawal activities";

On page three, subsection 3.2, by striking out the words "or
water withdrawal activities";

On page fourteen, subdivision 8.2.b., striking out all of
subdivision 8.2.b. and inserting in lieu thereof a new subdivision
8.2.b. to read as follows:

"8.2.b. For waters other than the Ohio River between river
mile points 68.0 and 70.0, a final determination on the critical
design flow for carcinogens is not made in this rule, in order to
permit further review and study of that issue. Following the
conclusion of such review and study, the Legislature may again take

up the authorization of this rule for purposes of addressing the
critical design flow for carcinogens: Provided, That until such
time as the review and study of the issue is concluded or until
such time as the Legislature may again take up the authorization of
this rule, the regulatory requirements for determining effluent
limits for carcinogens shall remain as they were on the date this
rule was proposed.";

On page fourteen, after subdivision 8.2.b., by adding a new
paragraph 8.2.b.1. to read as follows:

"8.2.b.1. For the Ohio River between river mile points 68.0
and 70.0 the critical design flow for determining effluent limits
for carcinogens shall be harmonic mean flow.";

On page fourteen, subdivision 8.3.b., by striking out all of
subdivision 8.3.b.;

On page fourteen, paragraph 8.3.b.1., by striking out all of
paragraph 8.3.b.1.;

On page fourteen, subparagraph 8.3.b.1.A., by striking out all
of subparagraph 8.3.b.1.A.;

And,

On page forty-seven, by striking out all of parameter 8.32 and
renumbering the remaining parameters.

(k) The legislative rule filed in the State Register on April
8, 2010, authorized under the authority of section four, article

eleven, chapter twenty-two of this code, approved for promulgation
by the Legislature on March 13, 2010, relating to the Department of
Environmental Protection (National Pollutant Discharge Elimination
System (NPDES) Program, 47 CSR 10), is authorized with the
following amendments:

On page forty-four, part 13.1.b.4.A.13., by striking out all
of part 13.1.b.4.A.13. and inserting in lieu thereof a new part
13.1.b.4.A.13. to read as follows:

On page forty-four, subparagraph 13.1.b.4.B, by striking out
all of subparagraph 13.1.b.4.B;

On page forty-four, part 13.1.b.4.B.1, by striking out all of
part 13.1.b.4.B.1.;

And,

On page forty-four, part 13.1.b.4.B.2, by striking out all of
part 13.1.b.4.B.2.

(l) The legislative rule filed in the state register on the
twenty-third day of July, two thousand ten, authorized under the
authority of section four, article twelve, chapter twenty-two of
this code, modified by the Department of Environmental Protection
to meet the objections of the Legislative Rule-Making Review
Committee and refiled in the state register on the fourteenth day

(m) The legislative rule filed in the state register on the
twenty-sixth day of July, two thousand ten, authorized under the
authority of section five, article twelve, chapter twenty-two of
this code, modified by the Department of Environmental Protection
to meet the objections of the Legislative Rule-Making Review
Committee and refiled in the state register on the twenty-second
day of September, two thousand ten, relating to the Department of
Environmental Protection (monitoring well design standards, 47 CSR
60), is authorized.